With all the recent attention focused on detainees’ hunger strikes, it is important to ask where is the U.S. Naval base at Guantanamo Bay? On a map it’s easy enough to locate: the southeast tip of Cuba. But it’s also a site that reaches beyond the Caribbean Sea—a real and imaginary littoral zone synonymous with the excesses of U.S. imperialism. Amy Kaplan asks this exact question—where is Guantanamo? And by the end of her excellent 2005 paper, the answer is clear: everywhere.

The U.S. Naval base is “leased” from Cuba, and became the site for “enemy combatants” in the war on terror back in 2002. But the site—which for Kaplan Guantanamo represents the “heart” of American empire—binds together the law and the land in a violent imperial combination with a history that primes the location. The U.S. first acquired the site in 1898, following the occupation of Cuba after the Spanish-American War. The Spanish first arrived there in the fifteenth century, with the bay serving as a portal for the trade of enslaved Africans. Following an indigenous uprising against Spanish rule, and buoyed by domestic support, the U.S. intervened against Spain to aid the anticolonial battle.

Sold as a struggle against a fading Old World Empire, the Spanish-American War left the U.S. with territories across the Caribbean and the Pacific. And yet, the liberators soon turned occupiers: “The swift victory against Spain ended in U.S. reluctance to accept the national independence of Cuba, or that of any of the other territories ceded by Spain” (Kaplan, 2005, p. 834). This included Cuba, the Philippines, Puerto Rico, and Guam—the latter two were converted into U.S. territorial possessions.

The professed goal of U.S. occupation of Cuba was first to secure and then cede the nation to independence. After three long years of occupation, Washington agreed to withdraw its troops, but only after imposing a legal framework that would guarantee future intervention. The 1901 “Platt Amendment” crystallized this inherent and paternalistic “right”, and guaranteed that the U.S. would be able to rent coaling and naval stations. This unilateral agreement paved the way for the leasing of Guantanamo Bay in 1903. The exact wording of the lease is contained in Article II, and demonstrates the contingency of Cuban sovereignty:

“While on the one hand the United States recognizes the continuance of the ultimate sovereignty of the Republic of Cuba over the above described areas of land and water, on the other hand the Republic of Cuba consents that during the period of the occupation by the United States of said areas under the terms of this agreement the United States shall exercise complete jurisdiction and control over and within said areas[i]”

Cuba’s first decades of independence was therefore predicated on the authority of the U.S. The agreement was abrogated in 1934—but the lease for Guantanamo was extended indefinitely (unless both nations elected to abandon it). As Kaplan argues, “The lease and attribution of limited sovereignty, which the Platt Amendment exemplifies, formed—and continues to form—an effective technology of imperial rule” (Kaplan, 2005, p. 837).

This technology of empire emerged alongside Theodore Roosevelt’s desire to increase, or globalize, U.S. power projection—from a strong Navy to a strong economy. The naval station at Guantanamo began as a military node that opened upon the Caribbean and Pacific, but it was soon employed for more sinister ends: as a site for detention camps for Haitian and Cuban refugees, who were blocked on their attempt to cross the waters to the U.S. landmass. The U.S. occupied Haiti from 1915 to 1934, and blocked migrants following the 1991 military coup. In 1994, close to 30,000 Cubans were held in a tent city after a failed attempt to reach the U.S. Indeed, the very decision to imprison “enemy combatants” at Guantanamo stems from this time: a 1995 decision by the Eleventh Circuit Court of Appeals, which ruled that Cuban and Haitian migrants have neither First nor Fifth Amendment rights.

The current detainees, many of whom are now on hunger strike, thus occupy the same physical geography as those that came before them, as well as the same imaginative geography—the base is a holding ground for dangerous bodies and racialized stereotypes.

Whether or not the Constitution “follows” the U.S. flag began much earlier than the 1995 ruling however.

At the turn of the twentieth century, following the acquisition of former Spanish territories, the “Insular Cases” between 1902 and 1922 were heard in court. At stake in the courts’ decision at this time was whether or not those spaces occupied by the U.S. were subject to U.S. legal protections. The Court was ambiguous: sometimes. The most noteworthy case was Downes v. Bidwell, which was concerned with whether the Constitution applied to Puerto Rico. In response, a new legal category was created, the “unincorporated territory”—a territory not fit for proper statehood (yet nonetheless subject to state power); a space belonging to, but not a part of, the United States; and whose people were neither citizens nor aliens.

This legal sleight of hand created the imperial edifice for domination that rules today—and would eventually make its way into the legal challenges against Guantanamo Bay. Take the landmark 2004 Supreme Court case of Rasul v. Bush[ii]. This 6-3-majority ruling held that U.S. federal courts do have jurisdiction to hear habeas corpus petitions filed by detainees. This followed a previous ruling by the U.S. District Court on July 30, 2002, that the Court did not have jurisdiction. This verdict was based on the argument that while the U.S. exercised jurisdiction over the territory of Guantanamo, it did not exercise sovereignty (which technically remained with Cuba). Here, the Courts cited a 1950 case (Johnson v. Eisentrager), when the Supreme Court ruled that American courts have no jurisdiction over German war criminals held in a U.S.-run German prison.

But as to the question of where is Guantanamo, Justice John Paul Stevens, who wrote the majority opinion, could not answer. Instead, Stevens relied on a long lineage of habeas corpus petitions that began with the British Crown, stretching as far back as the Magna Carta. Under the British Empire’s legal system, the subjects of its dominions and colonies were allowed to petition for habeas corpus. Stevens therefore sees Guantanamo under a similar light: a U.S. dominion where sovereignty was exercised but not directly held. This of course enraged dissenting Justice Scalia, who saw this as a dangerous overstretch of habeas corpus to all four corners of the earth. “Scalia excoriates Stevens for placing aliens and citizens on a continuum when Stevens concludes that if the habeas corpus statute applies to U.S. citizens at the base, then it should apply to aliens held in U.S. custody there” (Kaplan, 2005, p. 849).

Writes Kaplan:

“For the legacy of the Insular Cases does not lie primarily in delimiting the extraterritorial scope of the Constitution. It lies more powerfully in legislating an ambiguity that gives the U.S. government great leeway in deciding whether, when, and which provisions of the Constitution may apply overseas, and indeed in determining what territories may be considered ‘foreign to the United States in a domestic sense’” (Kaplan, 2005, p. 844).

As such, the Insular Cases have been mobilized both for and against Guantanamo detainees. So while Rasul can be seen as a victory for human rights and incorporating “black sites” into the domestic rule of law, more counterintuitively, it is simultaneously predicated on an expansion of U.S. empire—the result a two-tiered legal regime: one for the metropole, one for the periphery. The power of the executive is either aggrandized by denying habeas corpus to detainees, thus abandoning them as “bare life” to the Department of Defense in spaces outside of U.S. sovereignty; or it is aggrandized through an expansion of U.S. legal jurisdiction to the very same territories. Both forms of state power represent two sides of the same imperial coin, and in both cases an overarching architecture of empire is left undisturbed. Both abandonment of the law (located within Scalia’s isolationism) and expansion of the law (represented in Steven’s legal “checks”) forge the machinery and hubris of empire.

In either case then, Guantanamo is certainly not “within” the U.S., nor is it strictly “outwith”. Instead, it is an ambiguous territory located in the gap between—a schism opened up by empire.

“By understanding the long imperial history that fills the black hole of Guantanamo, we can see how the Court decision in Rasul v. Bush does not simply rein in executive power or bring Guantanamo inside the rule of law. In perpetuating the differential logic of the Insular Cases, the Court remaps an arena only partially and indiscriminately subject to constitutional restraints, wherein the executive can still exert power with impunity” (Kaplan 2005, p. 853).